No Past Income Loss but 1.5 Million in Future Losses?

Published on July 06, 2018 / Income Loss

If I haven’t lost any income in the past, can I still be awarded for future losses?

In this week’s case, the court considered the damages owing to a high level executive who had gritted her teeth to keep working through significant pain after a collision caused her injuries to her neck and low back (Johnstone v Rogic 2018 BCSC 988). Ms. Johnstone had not lost any income since the collision, although she was relying heavily on “personal time” and working only four days per week. She had pushed through and stayed on what the court referred to as a “stellar career path.” She was doing so, however, with significant prescription pain medications and at the expense of her home life. Her husband had taken over the majority of household and childcare duties, and Ms. Johnstone no longer participated in any of her recreational activities or even walking the dog. She would go to work, come home exhausted, and have to lie down to rest. A co-worker testified about Ms. Johnstone even having difficulty going up and down the stairs in their workplace.

Ms. Johnstone’s lawyers submitted that she was likely to step off the corporate ladder and move into consulting work on a part-time basis, earning significantly less than she otherwise would have. They pointed to the recommendation of an occupational therapist that Ms. Johnstone reduce her hours in order to ameliorate the significant negative impact her full time work was having on her personal and family life. Several of her doctors had also noted the potential for cognitive effects associated with long-term use of the pain medications Ms. Johnstone was using to get by.

Justice Burke found that Ms. Johnstone had indeed reached the threshold of a real and substantial possibility of a future loss, and awarded her1.5 million based on an economist’s calculations of what the expected consulting work would pay as compared to the corporate executive work she otherwise would have stayed in:

52 While the defendants point out Ms. Johnstone is a very valued employee, this comes at the cost of her personal and family life. As noted above this is simply not sustainable. The defendants cannot overcome this reality and simply chose to ignore it. While Ms. Johnstone continues to be rated as “excellent” in the workplace performance reviews, she has reduced her hours to four days a week. Ms. Johnstone has outlined the debilitating effects of the travel required as part of her position and testified as to her mobility and exhaustion problems. This is all corroborated by testimony from work colleagues, friends and family.

….

62 As noted by Ms. Johnstone, the evidence is overwhelming that her “absent accident” career trajectory has been negatively impacted by injuries associated with the accident. There was strong evidence Ms. Johnstone was being considered for a promotion that would result in an increase in earnings. There was also strong evidence she was effectively managing her medical issues at the time.

63 Ms. Johnstone has testified she will decline the offered promotion due to her present accident-related pain. Ms. Johnstone definitively said she would not take either available job. She at present is in a precarious position due to the acquisition of the company and her inability to continue to function at this level and undertake any of her other obligations to her family. It is simply not realistic on the evidence that Ms. Johnstone can continue at this level.

Jillian graduated from the University of Victoria’s Faculty of Law in 2015 and was called to the bar of British Columbia in 2016. She used her time at UVic to spearhead a number of social justice initiatives, and to volunteer for Pro Bono Students of Canada. Jillian is from the Okanagan and obtained her English Honours degree at the University of British Columbia’s Okanagan campus.